|
By Georgene M. Vairo: The National Law Journal. Some of the most explosive litigation battles with humongous stakes involve foreign plaintiffs suing multinational companies, including U.S. corporations, allegedly involved in human rights violations.The 2nd U.S. Circuit Court of Appeals in Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir. 1980), opened the federal courthouse door to the aggressive use of the Alien Tort Claims Act in human rights litigation. Although the U.S. Supreme Court attempted to cut back the reach of the ATCA in Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), human rights cases continue to occupy a major place on the federal docket. This column briefly reviews both Filartiga and Sosa, updates developments in Khulumani v. Barclay National Bank Ltd., 504 F.3d 254 (2nd Cir. 2007), and then discusses John Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007), cert. denied, Exxon Mobil Corp. v. Doe, 2008 U.S. Lexis 4915 (U.S. June 16, 2008) (No. 07-81), which portends another important human rights litigation development.
IN 'FILARTIGA,' THE 2ND CIRCUIT EMPHASIZED A HIGH BAR
Filartiga involved the question of whether the ATCA provides federal court jurisdiction for a Paraguayan citizen's torture claim against a former Paraguayan government official. The 2nd Circuit construed the ATCA, "not as granting new rights to aliens, but simply as opening the federal courts for adjudication of the rights already recognized by international law." 630 F.2d at 887.
The court then found that acts of torture "committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations." In the wake of this decision, numerous international human rights cases where filed in federal courts. While many of them ended up being dismissed on forum non conveniens or other grounds, the federal courts generally adopted a relatively expansive view of the reach of the ATCA. Then came Sosa.
In Sosa, Humberto Alvarez-Machain, a Mexican physician, sued a Mexican citizen for arbitrary detention -- an alleged violation of the law of nations -- under the ATCA. Alvarez had been detained for less than one day, and the Supreme Court ruled that "a single ... detention of less than a day, followed by the transfer of custody to lawful authorities and a prompt arraignment, violates no norm of customary international law so well defined as to support the creation of a federal remedy." Sosa, 542 U.S. at 738.
The court, however, explicitly declined to adopt specific criteria for determining when a court has jurisdiction over a claim pursuant to the ATCA. It did, however, create a somewhat historical way of determining whether jurisdiction exists under the ATCA: "[T]he federal courts should not recognize private claims under federal common law for violations of any international law norm with less definite content and acceptance among civilized nations than the historical paradigms familiar when §1350 was enacted." Id. at 732.
The court also recognized that it would be difficult to gauge whether a norm has sufficiently definite content and acceptance among civilized nations, and so injected an element of judgment: "[T]he determination whether a norm is sufficiently definite to support a cause of action should (and, indeed, inevitably must) involve an element of judgment about the practical consequences of making that cause available to litigants in the federal courts." Id. at 732-33. And it provided some guidance as to the sources of international law that may or may not provide a sufficient basis for uniformity of international acceptance, rejecting two of the plaintiff's sources: the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The court also explicitly rejected a survey of national constitutions, and a case from the International Court of Justice.
The Sosa opinion clearly intended to cut back on use of the ATCA, but lower federal courts immediately complained that the decision provides insufficient guidance. See, e.g., In re S. African Apartheid Litig., 346 F. Supp. 2d 538, 547 (S.D.N.Y. 2004). Accordingly, some federal courts have determined that because the holding in Sosa was narrow, it left the door open to a broader Filartiga-esque analysis. See, e.g., Kiobel v. Royal Dutch Petroleum Co., 456 F. Supp. 2d 457 (S.D.N.Y. 2006). This has led to a continuous flow of various sorts of human rights cases into the federal courts, and an expansion of the range of defendants that might be held liable.
As described in this column earlier this year, Khulumani, an exceptionally fractured opinion, resulted in the adoption of aiding and abetting liability in human rights cases. In that case, various multinational corporations were sued not for directly violating the human rights of black South Africans during the reign of apartheid, but for knowing about the abuses and continuing to facilitate them by doing business in South Africa. The Supreme Court ended up affirming the 2-1 opinion because the court could not achieve a quorum.
For multinational companies, therefore, it remains uncertain whether aiding and abetting liability can be applied to corporations, whether aiding and abetting is derived from domestic or international sources, and whether the standard is recklessness, knowledge or specific intent. Given the high stakes in ATCA human rights cases, multinational corporations must consider developing corporate compliance programs to ensure that they are dealing with their human rights responsibilities, particularly in their dealings with government officials or entities. It may be difficult for the Supreme Court to adjudicate the issue because the broad array of companies sued in these cases may make it impossible for the court to achieve a quorum.
Exxon Mobil Corp., under contract with the Indonesian government, operates a large natural gas extraction and processing facility in Indonesia. The plaintiffs are 11 Indonesian villagers who alleged that Exxon's security forces committed murder, torture, sexual assault, battery, false imprisonment and other torts. They further alleged that all the security forces were members of the Indonesian military, and that Exxon retained these soldiers even though it was aware that the Indonesian army had committed human rights abuses in the past. The plaintiffs also alleged that these security forces were directed and controlled by Exxon, and that it provided them with weapons, funding and other supplies.
The plaintiffs sued Exxon and an unrelated entity in the U.S. District Court for the District of Columbia. They sought relief under the ATCA and the Torture Victims Protection Act, as well as bringing common law tort claims for wrongful death, assault, battery, arbitrary arrest and detention, false imprisonment, intentional and negligent infliction of emotional distress, negligence and conversion. They sought an array of relief including compensatory and punitive damages, and an injunction prohibiting the defendants from engaging in similar conduct in the future. Rather than answer the complaint, the defendants moved to dismiss on the ground that the claims were political questions.
THE STATE DEPARTMENT IS SOLICITED, AND WEIGHS IN
While the motion was pending, the district court solicited the State Department's opinion about whether adjudicating the plaintiffs' claims would interfere with U.S. foreign policy interests. The State Department's letter to the district court stated that the litigation risked a potentially serious adverse impact on significant interests of the United States. However, the letter also stated that these effects on U.S.-Indonesian relations could not be determined with certainty.
The State Department attached a letter from the Indonesian ambassador stating that Indonesia "cannot accept" a suit against an Indonesian government institution, and that U.S. courts should not be adjudicating "allegations of abuses of human rights by the Indonesian military."
The district court dismissed all of the plaintiffs' claims under the ATCA and the TVPA. It also dismissed all remaining claims against the other defendant, an entity that was 55 percent owned by the Indonesian government, because allowing litigation against that corporation would "create a significant risk of interfering in Indonesian affairs." Finally, the district court denied Exxon's motion to dismiss the common law tort claims, holding that these claims did not present a political question.
Exxon filed an interlocutory appeal, arguing that the district court should have dismissed the plaintiffs' common law tort claims as political questions. The D.C. Circuit did not reach the political-question issue because it found that it lacked jurisdiction over the appeal. Nor would it grant Exxon a writ of mandamus compelling the district court to dismiss the claims because Exxon did not meet the high mandamus standard of a "clear and indisputable" right to have the plaintiffs' claims dismissed. A strong dissent argued that the matters in issues were of such importance that the court should have taken the interlocutory appeal so it could resolve the political-question issue. And the Supreme Court denied certiorari.
Reminiscent of the Khulumani litigation, we see fractured opinions leaving major questions, such as whether and when aiding and abetting liability exists and the extent to which the political-question doctrine weighs against the exercise of federal court litigation in international human rights cases. And we also see the Supreme Court unwilling or unable to step in to clarify the law. To the extent that the court in Sosa left so much open to debate, it may well be that it would be impossible for the court to do any better than the courts of appeals in clarifying the law.
Georgene M. Vairo is a professor of law and William M. Rains Fellow at Loyola Law School, Los Angeles. She is on the board of editors of Moore's Federal Practice, and writes the Moore's chapters on removal and venue problems. She can be reached at
This e-mail address is being protected from spambots. You need JavaScript enabled to view it
. |
